Wednesday, June 30, 2010

My book Exporting American Dreams: Thurgood Marshall's African Journey, and the topic of transnational history, are taken up in a roundtable on H-Diplo, the diplomatic history listserv. The roundtable includes an Introduction by Christopher Endy, California State University, Los Angeles, reviews by Daniel Branch, University of Warwick, Cary Fraser, Pennsylvania State University, and George White, Jr., York College-CUNY, and a response from me.

Via H-Law: Lincoln's Inn Library in London will close for major building works at 1 pm on Friday 30th July 2010 and re-open at 9 am Monday 13th September 2010. During the closure visiting scholars may be able to consult particular items among the collections of rare books and manuscripts if notified in advance of the closure. Contact library@lincolnsinn.org.uk . An email and telephone enquiry service will also be in operation during the closure - see the Library pages atwww.lincolnsinn.org.uk .

In specific historical circumstances, popular rights consciousness can challenge power hierarchies by fostering the imagination of transformed social structures as well as coalitions reflecting these alternate political realities. During the late 1960s through the decade's turn, the right to universal childcare echoed as a political demand across diverse strands of the feminist movement. By translating personal needs into a rights claim, feminists politicized the issue of childcare in ways that challenged cultural constructions of the boundaries between the family, market, and state. The language of rights enabled activists to articulate the place of childcare in their visions for women's liberation, African American freedom, and a just economy. Despite the tensions in their aspirations, the universal character of the rights claim enabled middle-class and working-class, white and African American, liberal and radical women to build coalitions on the basis of common policy interests. President Nixon's veto of the Comprehensive Child Development Act of 1971, however, exploited class-based fault lines in the childcare coalition. In this changed political context, feminist mobilization for the right to universal childcare waned. By uncovering the overlooked story of feminist thought and grassroots activism respecting childcare, this essay shows that childcare once held far more robust and radical political meanings than it does today.

Tuesday, June 29, 2010

Hat tip. The Georgetown announcement is here. Legal historians know Bill Treanor as one those rare Deans who sends out reprints. In other words, he has continued to write serious legal history while also serving as Dean at Fordham. A partial list of publications just from last year includes: “Marbury v. Madison,” in Federal Courts Stories (Vicki Jackson & Judith Resnik, eds., Foundation Press, 2009); “Morton Horwitz: Legal Historian as Lawyer and Historian,” in Transformations in American Legal History: Essays in Honor of Morton J. Horwitz (Daniel W. Hamilton & Alfred L. Brophy, eds., Harvard Law School, 2009); "Against Textualism," 103 Northwestern Law Review 983-1006 (2009); and “Supreme Neglect,“ 107 Michigan Law Review 1059-1071 (2009) (book review). He has a book manuscript in progress on judicial review in early U.S. history. I take it as good news for the field as well as for Georgetown that such an engaged legal historian will be at the helm of a top law school.

Alison LaCroix has blogs on "the Use and Misuse of Legal History in McDonald" on the University of Chicago's Law Faculty Blog. She writes:

Ever since the Court issued its decision in D.C. v. Heller in 2008, many legal historians have found themselves in the odd position of feeling compelled to defend their methodology against triumphalist congratulations from those outside the field. In the wake of a decision that found both Justice Scalia and Justice Stevens invoking the Glorious Revolution, early colonial regulations, and the ratification debates, surely legal historians of all persuasions could agree that the insistence of both the plurality and the dissenters on speaking the legal-historical argot was a victory for the methodology. Even if one disagreed with the justices’ conclusions, perhaps legal historians ought to be grateful that the battle was joined on the field of history. In short, shouldn’t we see Heller as the moment when the Court finally joined us in the archives?

Just in time for the Kagan confirmation hearings, BackStory is delving into the long history of appointments to the Supreme Court. What qualities did presidents and lawmakers look for in Supreme Court justices 200 years ago, and how have those expectations changed? How much have nominees’ personalities and backgrounds mattered in the past? Was the confirmation process always as “politicized” as it seems today? Was it more so? How has media coverage affected the process? Join the History Guys as they explore the highlights – and lowlights – of Supreme Court nominations past.

Featured are three guests: Maeva Marcus, Henry J. Abraham, and Linda Przybyszewski.

The Collection on Legal Change is an archival collection of record groups that illustrate aspects of legal evolution in the United States in the Twentieth Century. It contains materials on topics such as national labor policy [in the guise of the papers of NLRB lawyer Philip Levy], abortion legislation, conservation and environmental protection, judicial and martial law, Prohibition and the 18th and 21st Amendments, the Social Credit Movement, and anti-Semitism in the 1930s. The CLC contains the distinct bodies of records created by organizations and individuals, including government officials and politicians, in the interest of future scholarship and interpretation of the nature of social, economic, political, and legal change.

Within the CLC, researchers will find a wide variety of fascinating and useful materials that could be used for any number of projects. For instance, the Abortion Litigation papers of Roy Lucas include litigation and case files for 25 state and federal abortion cases, including the landmark Roe v. Wade. In the William M. Citron Political Papers, researchers will find correspondence and other materials from a Connecticut Congressman condemning the United States’ participation in the 1936 Berlin Olympic Games as well as his work to regulate development and provide flood control along the Connecticut River. The Ray P. Holland Papers on the Enforcement of the Migratory Bird Treaty document some of the first national wildlife conservation laws, supporting Supreme Court case materials, and the wildlife photography and writings of an early editor of Field & Stream magazine.

Those interested in the government’s role in developing scientific research will find official documents and other materials from the House of Representatives surrounding the Subcommittee on Science, Research and Development in the 1960s within the papers of Emilio Q. Daddario. Researchers interested in the Prohibition and Temperance Movement will find fascinating materials in the Repeal Papers of the Voluntary Committee of Lawyers. This organization laid much of the groundwork for the state-by-state ratification of the 21st Amendment, which repealed the ban on the manufacture, distribution, and consumption of alcohol in the 1920s.

Monday, June 28, 2010

I recently became a member of the Board of Directors of the Historical Society for the District of Columbia Circuit. Over the years it has engaged in many valuableactivities, including an excellent oral history program of judges and leading practitioner. That said, I’d be grateful for any suggestions from LHB’s readers interested in the federal courts in general and the courts of the DC Circuit in particular of topics meriting scholarly study or public attention and of ways in which the Society’s very good website might be put to even better use. Please comment or email me at ernst@law.georgetown.edu.

Sunday, June 27, 2010

Three books on North Korea are reviewed in the New York Review of Books: Nothing to Envy: Ordinary Lives in North Korea by Barbara Demick, The Hidden People of North Korea: Everyday Life in the Hermit Kingdom by Ralph Hassig and Kongdan Oh, and The Cleanest Race: How North Koreans See Themselves-and Why It Matters by B.R. Myers.

Two books about Islam are taken up in the New York Times: FAITH AND POWER: Religion and Politics in the Middle East by Bernard Lewis and MUHAMMAD AND THE BELIEVERS: At the Origins of Islam by Fred M. Donner.

Saturday, June 26, 2010

I'm a little curious about the appearance of Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law on the list of Republican witnesses testifying at Elena Kagan's Supreme Court confirmation hearings, which begin on Monday. What might be the constitutional/legal history argument against the confirmation?

The blog addresses issues at the intersection of law, culture, politics, and race, topics all the contributors have written compellingly about. Recent posts have included commentary on the Stop the Beach case, the Kagan nomination, and a guest post from Dorothy Brown on the BP Dividend Controversy. I look forward to more!

This a remarkable book, based on decades of close study of medieval conveyancing documents. The abbreviations list more than 150 cartularies or other charter collections that are cited. Technical as many of the concerns are, the subject provides an ideal bridge between legal and other aspects of history. Kaye provides answers for the type of question that non-legal historians will ask, and the answers are expressed in readily accessible fashion: ‘From a conveyancer’s point of view the most important questions to be asked, in respect of any medieval transaction, are not only whether it was in accordance with the law, but whether it achieved its object’

Friday, June 25, 2010

Et Seq., the blog of the Harvard Law School Library, announces the opening of the papers of Philip E. Areeda (1930-1995), a scholar of contracts and (especially) antitrust. As well he served in several Republican presidential administrations. The details are here.

For more than a generation, historians and legal scholars have documented inequalities at the heart of American law and daily life and exposed inconsistencies in the generic category of "American citizenship." Welke draws on that wealth of historical, legal, and theoretical scholarship to offer a new paradigm of liberal selfhood and citizenship from the founding of the United States through the 1920s. Law and the Borders of Belonging questions understanding this period through a progressive narrative of expanding rights, revealing that it was characterized instead by a sustained commitment to borders of belonging of liberal selfhood, citizenship, and nation in which able white men's privilege depended on the subject status of disabled persons, racialized others, and women. Welke's conclusions pose challenging questions about the modern liberal democratic state that extend well beyond the temporal and geographic boundaries of the long nineteenth century United States.

Contents: Introduction; 1. Constructing a universal legal person: able white manhood; 2. Subjects of law: disabled persons, racialized others, and women; 3. Borders: resistance, defense, structure, and ideology; Conclusion: abled, racialized, and gendered power in the making of the twentieth-century American state; Coda.

And here are the blurbs:

"A book that `every historian should read' is a rare phenomenon, but in my estimation this is one of them. Barbara Young Welke's remarkable achievement is to say something original and unexpected about race and gender. By setting both in relation to disability, she shows how these intertwined categories of identity have profoundly shaped the modern understanding of citizenship and legal personhood. That she does so in lucid and often powerful prose is icing on the cake." - Douglas Baynton, University of Iowa

"In this extraordinary book, Barbara Young Welke embraces a revolution in historical understanding that has been elusive, even though in some ways it has long been right before our eyes. Moving past old paradigms and writing with clarity, confidence, and authority, she offers a fresh understanding of the meanings of U.S. citizenship and a truly original narrative of social change in the United States from the founding generation to World War I." - Linda Kerber, University of Iowa

"With clarity and concision, Barbara Young Welke shows the complex ways in which American law drew the lines of membership and citizenship according to physical and mental ability, race, and gender. This is a book of enormous sweep, power, and humanity." - Mae M. Ngai, Columbia University

"Passionate, provocative, powerful: this splendid book should be required reading for everyone who wants to know anything about the history of American law." - Peggy Pascoe, author of What Comes Naturally: Miscegenation Law and the Making of Race in America

The expansion of industrialization throughout modern Europe led to the collapse of several professions, from the local doctor to the urban artisan and entire peasant communities. But one profession stood to gain most from the modernist ordeal, reaping the rewards of new sweeping changes. As the expansion of state bureaucracy and capitalist accumulation was accompanied by the proliferation of litigations, legal professions became increasingly influential in local and state-level politics. The lawyers' weight was noticeably felt in those countries, like France and Germany, where nationalism expanded in tandem with state centralization. Within the "professional classes" (often named as the "intelligentsia"), lawyers, barristers, solicitors and other codifiers played a pivotal role in the formation of several nationalist movements throughout Europe, both in support of state centralization and in opposition to it.

Lawyers and constitutionalists played an even more central role in the formation of Catalan nationalism. Here, the abolition of regional institutions ensuing after the War of the Spanish Succession (1701-14) failed to eradicate the primacy of the dret català (Catalan law) dating back to the seventh century. After a period of decline, its autonomy within the kingdom of Spain was brought to an end by Philip V (r. 1700-46): a royal decree (Nueva Planta, 1716) banned most Catalan institutions, laws, and customs, including the language, and imposed a uniform centralized administration. Although lawyers had reached their professional nadir under absolutism, Philip V's overhaul could not eliminate overnight the vast baggage of expertise accumulated by Catalan juristes during centuries of law-making and institution-building.

Their central role in modern Catalan politics has been assessed for the first time in English by Stephen Jacobson in his Catalonia's Advocates: Lawyers, Society, and Politics in Barcelona,1759-1900.

Thursday, June 24, 2010

﻿I recently stumbled upon the syllabus for the course on Israeli Legal History that AssafLikhovski, an associate professor at Tel Aviv University Faculty of Law, taught while visiting at the UCLA Law School in the Spring 2010 semester. I was particularly struck by his comparativist approach, as articulated in the course description, which I post here with Professor Likhovski’s permission:

﻿Israel, like the United States, is a settler society whose establishment was inspired by utopian ideology but was also based on war and violence. Like the United States, Israel is an imperfect democracy, committed to notions of equality yet also divided along class and ethnic lines. In both Israel and the United States law plays a major role in shaping identity, framing political discourse and mediating (and also sometimes exacerbating) social conflicts. In what ways do law and society interact in Israel and what can Americans learn from the Israeli experience? This course will seek to answer these questions by exploring the history of Israeli law. After an introductory section containing a brief overview of Israeli history and a general introduction to legal history, the course will focus on two distinct periods: the British Mandate and the first two decades after Israeli independence. Law will be used as a prism through which major debates about the history of the Israeli state and Israeli society will be analyzed. Among the topics that will be discussed are the reception of English law after the British conquest, law and national identity, varieties of legal pluralism, postindependence legal change and continuity, formalism and rights discourse, the role of law in ethnic, class and gender conflicts and in shaping historical memory (with special emphasis on the Holocaust). No prior knowledge of the history of Israel or its law is assumed.

The Gilder Lehrman Institute of American History has announced publication of Shaping the American Economy, the latest issue of History Now, a quarterly online journal for history teachers and students, available here. The Institute explains:

How has American capitalism evolved? When were banks introduced into our economy? How did the stock market come into existence and why is it so important today? Who were the pioneers of American industry and finance? How has government policy affected the economy in the past? In this issue of History Now, five noted scholars grapple with these questions. The result is a primer on the American economy, describing clearly and accessibly the origins and development of our most critical institutions. In addition, we have included a slideshow of images from financial scandals throughout American history in partnership with the Museum of American Finance.

Wednesday, June 23, 2010

Here are a few thoughts prompted by that symposium on how to write a law school history that Mary notes here.

I missed a reference in the panel discussion to John Henry Schlegel and Alfred Konefsky’s brilliant (and often hilarious) review essay, “Mirror, Mirror on the Wall: Histories of American Law Schools,” Harvard Law Review 95 (1982): 833. When I wrote the greater part of a book on Georgetown Law, I was never quite free of the fear that the pair would savage it in a sequel.

Among the challenges of writing an institutional history that Konefsky and Schlegel dwelt upon was the problem of periodization. The pair rejected the "decanal synthesis," in the history of the school is organized around the succession of its deans, as a nonstarter, no more promising for the history of legal education than the "presidential synthesis" was for political history. I tend to agree: while the right deans could make a big difference, they usually did so because some more fundamental development made new departures possible. To invoke a more weighty sentiment than perhaps the subject warrants: "Men make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past."

Laura Kalman makes perhaps the strongest case for a dean with Guido Calabresi in Yale Law School and the Sixties. For my part, I thought that Paul Dean transformed Georgetown in the 1960s, but I also thought that a more general development, the greater assertiveness of the laity within the Catholic church, made it possible for Dean to do as much as he did. That's why I defined the eras in the history of Georgetown Law in terms of the relative importance of the laity or the clergy in its dominance. Writing in 1995, I saw three periods: (1) a founding era, in which a section of Maryland's social elite, that traced its ancestry back to the English Catholics who settled the colony, attempted (and failed) to create a genteel and Democratic alternative to Washington's other "mass" and Republican-leaning law schools; (2) a middle passage in which the school was under the tutelage of Jesuit regents (including, most famously Father Francis Lucey, who led the Catholic attack on Holmes and the legal realists); and (3) a liberal era in which the school embraced secular notions of professionalism and the politics of the Great Society.

When Schlegel and Konefsky surveyed the law schools histories, the dominant approach to periodization they discovered--and railed against--was what might be termed the "Harvard" or "Langdellian" synthesis. That is, authors organized their accounts in terms of their schools' gradual adoption of the package of reforms that Christopher Columbus Langdell brought to the Harvard Law School, including a three-year, sequentially arranged curriculum of graded course; a full-time, scholarship-producing curriculum; rigorous entrance requirements; the case method of instruction. Robert Stevens demonstrated the power of the Langdellian synthesis in Law School, a landmark history of legal education, but, as Schlegel and Konefsky observed, it inclined authors to downplay the peculiarities of their schools and rendered anticlimactic the many years after a school adopted the Langdellian reforms. More importantly, whether they intended to or not, the Langdellian synthesizers tacitly valorized an approach to legal education that served the interest of a particular (and particularly powerful) branch of the American legal profession, the corporate bar. It sorted on those intellectual and perhaps emotional traits that the law firms valued in their associates and partners and, as Robert Gordon argued, it provided Wall Streeters with powerful legitimating ideologies. Whatever the merits of the Langdellian synthesis for the handful of law schools that fed the corporate bar, it encouraged authors of other institutions to overlook how their institutions served other sectors of the legal profession.

All of which makes the present a particularly interesting time in the writing of the history of American legal education. In 2006, under Dean Elena Kagan, Harvard publicized its a break with Langdell by introducing a class on the regulatory state in the first-year curriculum. (I can't resist the aside that Willard Hurst anticipated his alma mater by over six decades.) If, as one of Stevens's chapter titles proclaimed, "Harvard Sets the Style," other law schools should feel free to join Cantabrigians in stepping out from the long shadow of the great dean. Further, the appearance of Bruce Kimball's biography lets us see Langdell's own achievements and failures more clearly than ever before. I doubt Kimball sees it this way, as he interprets Langdell's deanship as the inception of an era in the history of professional education that is with us still. But perhaps from the narrower vantage point of the history of legal education, the publication of his biography represents the taking flight of the owl of Minerva, and we're finally understanding the dawn of a Langdellian era just as it comes to a close.

I'm not prepared to anoint some new basis for periodizing legal education as the most promising, if only because, in any well-crafted history, periodization follows causation, so that the periodization an author adopts should follow his or her own notion of what makes the history of legal education go. But I do hope that they give the economic history of the American legal profession as serious try-out--both the the economic history of the legal profession as a whole and that of the particular segment their school has served. Langdellianism was never just about grading the beef for the corporate bar or legitimating its power, but the fillip that the calamitous conditions in the market for corporate lawyers is giving to experiential learning as law schools scramble to find new placements for their graduates suggests something of the explanatory power of an economic approach.

For the most part, the contributors to Professor Jarvis's symposium follow their mandate to discuss the nuts-and-bolts of writing law school histories, rather than such matters, although Professor Michael Landon, the author of The University of Mississippi School of Law: A Sesquicentennial History did urge would-be authors to "compare, at different points in time, what was going on in [their] law school[s] with what was going on in other law schools around the country." I was interested to see that in writing his history of the Cumberland School of Law David Langum felt the same conflict I did in producing the Georgetown book. When I got to that part of the school's history that was within the living members of its faculty, I decided that I could be either a good colleague or a good historian but not both. Professor Langum and I took the same way out: we let someone else write up the recent past and accept that the result would be "strictly an 'upward and onward' puff piece." Langum and his coauthor frankly announced this plan of action in their preface. I attempted to send the same message by claiming authorship of only the first two sections of the book. To quote a great rock poet: "Two out of three ain't bad."

What I appreciate most in the discussion was the panelists' reports of their conversations with the deans who commissioned their books. All insisted that their books--or their portions of the book--would have to be, in Professor Langum's phrase, "serious analytical history." As Professor Landon recalled, "I stressed that if I did it, what I wanted to write was an in-depth, heavily researched monograph . . . . that would include not just the highs in the law school's history, but also the lows and the ins and the outs." The deans agreed, moved by the wisdom of Langum's view that a Whiggish account "in which the vicissitudes of the past led inevitably to the triumphs of the present . . . . would do little to enhance the school's reputation." May future decanal patrons be so wise!

Law School Histories: A Panel Discussion, has been posted by Robert M. Jarvis, Nova Southeastern University Law School. It features authors of law school histories: Michael de L. Landon, David J. Langum, and D. Don Welch, and Linda M. Lacy, Senior Editor of Carolina Academic Press, publisher of histories of Creighton, Stetson, and Valparaiso Law Schools. Robert Jarvis moderates. Here's a short description:

Many law professors are interested in publishing a history of their law school, but few know how to do so. This paper identifies and discusses the various steps, including: 1) securing the necessary institutional support; 2) locating the underlying source material; 3) deciding on the manuscript's direction and tone; 4) working with co-authors; 5) finding a publisher; and 6) developing and executing a marketing plan.

Tuesday, June 22, 2010

Quoth the Raven is a beautiful and compelling new blog from the University of Maryland Law School. Anyone curious about the name clearly has not been to Mark Graber's law school office, from which you can see the grave of Edgar Allen Poe himself! So far the blog has posts from Graber, Maureen Sweeney, Deborah Hellman, Taunya Lovell Banks, Robert Percival, and others. It looks to be a model of a smart and substantive law faculty blog.

This book is a wonderful teaching resource. It includes primary sources and commentary by the editors. The selections include accounts by women in the pre-Roe years, including Sherri Chessen Finkbine, who had to leave the country to obtain an abortion when carrying a child with Thalidomide-induced birth defects in 1962. Activists on both sides and statements from religious groups are included. Law teachers will be especially interested in litigation documents and strategy memos in pre-Roe cases, and selections on legislative reform efforts. According to the editors, "Our purpose in presenting original texts reflecting many points of view is to permit readers to come to their own informed conclusions about a consequential, but widely misunderstood, chapter in American social, political, and legal history."

Here's the book description:

The Supreme Court's 1973 decision in Roe v. Wade legalized abortion-but the debate was far from over, continuing to be a political battleground to this day. In the decades since the case was decided, the American debate on abortion has moved away from the issues that the justices confronted more than three decades ago. Bringing to light key voices that illuminate the case and its cultural context, Before Roe v. Wade looks back and recaptures how the arguments for and against abortion took shape as claims about the meaning of the Constitution-and about how the nation could best honor its commitment to dignity, liberty, equality, and life.

In this ground-breaking book, Linda Greenhouse, a Pulitzer Prize-winning journalist who covered the Supreme Court for 30 years for The New York Times, and Reva Siegel, a renowned professor and former deputy dean at Yale Law School, collect the most significant historical, cultural, and legal documents which helped shape the Supreme Court's controversial decision.

And here's a summary of the book's contents:

Part I opens with the voices of women seeking abortion in the era of criminalization, as well as public health professionals, doctors, lawyers, and clergy who in the 1960s proposed modest reforms of century-old laws banning abortion. Thereafter, Part I traces the emergence of feminist arguments for repeal of abortion laws, showing how the women’s movement expanded the focus and normative grounds of debate; samples the heterogeneous response of religious institutions of the era; and concludes by showing how the Catholic Church helped mobilize a movement to preserve criminal abortion laws that appealed to secular authority capable of persuading Americans across denominational lines. Part II of the book examines the constitutionalization of conflict in the 1969-72 period. It reconstructs the interplay of legislation and litigation in New York where the state’s 19th century abortion ban was repealed in 1970 and almost reinstated in 1972; and then turns to the conflict concurrently unfolding in Connecticut, where litigation prompted invalidation of the state’s 19th century abortion ban, which the state legislature then promptly reenacted and the federal courts promptly invalidated, in a decision on appeal at the time of Roe. Part II concludes by surveying discussion of abortion in 1972 during the McGovern-Nixon presidential campaigns and the ERA ratification debate in order to sample claims and frames that shaped public understanding of abortion the time of the Court’s decision in Roe. Part III of the book closes with a brief litigation history of Roe, excerpts of the briefs in the case, and the text of Justice Blackmun’s hand-down statement from the bench. An introductory essay and afterword suggest ways in which the documents alter our understanding of the abortion right’s constitutionalization, and of the character of the controversy it engendered.

The Broward Sheriff's Office is the country's largest fully-accredited sheriff's department, yet its long and colorful history has escaped the attention of scholars. This oversight has now been corrected by Dr. William P. Cahill and Professor Robert M. Jarvis, who have painstakingly scoured hundreds of sources to tell the agency's story. The result is a fascinating tale that unfolds against the backdrop of South Florida's evolution from rural frontier to international tourist destination. Accompanying the text are 200 pictures (many are rarely seen), a biographical time line, year-by-year election results, and an extensive bibliography.

Explores the career of John B. West (1852-1922), founder of the West Publishing Company, and discusses the reasons why he has become a forgotten man, ignored by the company that bears his name and all but unknown in the profession he single-handedly revolutionized.

In this boldly interpretive narrative, William McKee Evans tells the story of America's paradox of democracy entangled with a centuries-old system of racial oppression.

Before English colonization, Spanish and Portuguese conquerors enslaved American natives to produce for a European market becoming addicted to sugar, rum, and tobacco. But soon they saw their slaves sicken and die in apocalyptic numbers. They began to import Africans, who survived the killer plantation diseases long enough to allow stable production, and a new kind of slavery was born, both market driven and defined as black. A century later, English planters adopted this slavery. They passed on to future generations a racial system of interacting practices and ideas. Its ideas first justified black slavery, then, after the Civil War, other forms of coerced black labor, and, today, black poverty and unemployment.

At three historical moments, a crisis in the larger society opened political space for idealists to challenge the racial system: during the American Revolution, then during the "irrepressible conflict" ending in the Civil War, and, finally, during the Cold War and the colonial liberation movements. Each challenge resulted in a historic advance. But none swept clean. The emancipations of the era of the Revolution left the nation part free, part slave. The Civil War emancipated the slaves but left them half free. In the 1950s and '60s, a convergence of the colonial liberation movements and the Cold War created a crisis that opened space for the Black Freedom Movement to liberate many African Americans from a segregated bottom stratum of American society. Class became more important than color. But never had class, being poor, been a more formidable obstacle for any individual, black or white, to getting ahead. Many African Americans remain segregated in jobless ghettoes with dilapidated schools and dismal prospects in an increasingly polarized class society.

Evans sees a new crisis looming in a convergence of environmental disaster, endless wars, and economic collapse, which may again open space for a challenge to the racial system. African Americans, with their memory of their centuries-old struggle against oppressors, appear uniquely placed to play a central role.

And reviews and blurbs:

"A penetrating look at the complicated history of race in America."--Booklist

"Well-written, thoroughly researched, and well-documented work. . . . It is an excellent text for use in any history class covering the span of events in American history as well as in any African-American history course."--Multicultural Review

"William McKee Evans is that rare scholar who writes clearly and well, displays an impressive grasp of the smaller facts of history, and yet can rise above the fray of footnotes to make sweeping and extraordinarily telling historical observations. This book represents the capstone of a remarkable career, and it is his most expansive and well considered work."--Timothy B. Tyson, author of Blood Done Sign My Name: A True Story

"In analyzing key developments and moments of crisis over nearly four hundred years, William McKee Evans brings to bear an extraordinary command not only of the established historical literature on North America, but an impressive grasp of historiography from the wider Atlantic world. The result is a surefooted, authoritative study that radically reframes an old story, drawing fresh and compelling insights from some of the most studied events in the American past."--Brian Kelly, author of Race, Class, and Power in the Alabama Coalfields, 1908-21

Sunday, June 20, 2010

Not Fit for Our Society: Immigration and Nativism in America by Peter Schrag is reviewed in the Los Angeles Times. Mark Arax finds it “a thoughtful, especially timely look at the spasms of anti-immigration that have defined our nation from the very beginning.” Schrag writes: "The history of American attitudes about immigration and immigration policy has long been a spiral of ambivalence and inconsistency, a sort of double helix, with strands of welcome and rejection wound tightly around one another."

And last week while I was away last week, NEOCONSERVATISM: The Biography of a Movement by Justin Vaïsse, translated by Arthur Goldhammer, was reviewed in the New York Times. Barry Gewen calls the book "essential reading for anyone wishing to understand the contours of our recent political past. Vaïsse is a historian of ideas. 'Neoconservatism' demonstrates, among other things, that ideas really do make a difference in our lives."

Saturday, June 19, 2010

Lea S. Vandervelde, University of Iowa College of Law, has posted A Singular Conscience: In re Summers, which also appears in Employee Rights and Employment Policy Journal 14 (2010): 153-206. Here is the abstract:

This article tells the story behind In re Summers, 325 U.S. 561 (1945) in which Clyde Summers was denied admission to practice law in Illinois based on a finding of unfit character because he elected conscientious objector status and declared that he could not kill another human being. Summers initiated his own appeal and the U.S. Supreme Court upheld the Illinois decision reaffirming that admission to practice law could be denied on these grounds. The story richly illustrates the circumstances of an individual taking a different course because he senses ideas that have not yet become generally understood. Such persons of singular conscience do not fit the categories of logic, law and convention that have gone before, as an analysis of the case demonstrates.

This long neglected decision has never been overturned. The decision permits states to single out principled individuals and disqualify them from occupations. Also at stake is the free exercise of religious conscience.

Secondly, the case invokes an ancient understanding of what it means to be a lawyer, “the lawyer-warrior.” The discursive exchange at the controversy’s heart can be read as marking the emergence of a new, contrasting view, “the lawyer-peacemaker.” The “lawyer-warrior,” a conventional model for attorneys in an adversarial system, had a significant hold on the minds of the Board on Character and Fitness. Although Summers did not prevail, in the process, at an early date, 1943, he articulated a remarkably modern view of the lawyer as problem-solver.

In 1873, sixty years before Summers, the same state declared Myra Bradwell unfit to practice law because she was a woman, a decision also upheld by the U.S. Supreme Court in Bradwell v. Illinois. The two cases share an interesting connection: the prescribed role for the lawyer-warrior in the adversarial system is quintessentially male. If the test is the willingness of a person to take a human life, Summers justifies excluding women from the bar and many men as well.

Judicial opinions selected for inclusion in case law reporters are only a small fraction of the universe of legal materials that may provide insight into the history of how legal concepts work in practice. This article examines a neglected source of information: newspaper archives, many of which are becoming available in full-text electronic databases. This article argues that newspapers are a valuable supplement and corrective to legal research performed through traditional means. It includes a test case of how research on a discrete legal topic (Canada's prohibition on blasphemous libel) turns up very different results in newspaper archives compared

Mr. Patrick’s paper reminds me of an article by my colleague James Oldham that made an analogous point, before the advent of on-line, full-text newspaper databases, for England: “Law Reporting in the London Newspapers 1756-1786,” 31 American Journal of Legal History 177 (1987).

Friday, June 18, 2010

The prior post speculated about some novel features of the recent nomination and confirmation process.Now for some thoughts about other features that seem relatively novel but, in some sense, are not.Again, a cautionary note about the fact that I’m going to make some large generalizations, which are subject to qualification in the details as applied to specific nominations.

The conventional and not inaccurate wisdom is to date the modern process to the Bork nomination, which featured, for the first time, large-scale participation by modern “checkbook” interest groups – interest groups without true members and focused primarily on ideological questions rather than on specific material benefits the government (including the courts) could provide (or deny). Interest groups had played a role in earlier nominations, most notably the defeat of the nomination of John J. Parker in 1930, but there the groups were traditional interest groups, the NAACP and labor unions– which had real members, rather than a membership consisting of people who wrote checks to support the organization and did essentially nothing else.Checkbook or ideological interest groups have played a part in nearly every nomination since Bork’s.

But, if the participation of ideological interest groups is new in one sense, it is quite traditional in another.The broadest generalization one can make about the process of nomination and confirmation is that it will be roughly the same as contemporaneous political processes about essentially every other issue, at least insofar as those processes involve personnel as well as substance.At a time when ideological interest groups play a large role in the development of health care policy (with traditional interest groups playing a secondary role), ideological interest groups will play a large role in the nomination and confirmation process (with traditional interest groups playing a secondary role). When traditional interest groups were given representation in administrative agencies, they were given representation on the Supreme Court.When presidents appointed their personal acquaintances and cronies to administrative agencies, they appointed personal acquaintances and cronies to the Supreme Court.And, notably, when personnel policy was patronage-driven, so were Supreme Court nominations.(My favorite example is the failed nomination of Ebenezer Hoar, an entirely well-qualified nominee, because he came from the reform wing of the Republican party when the Senate was controlled by the patronage-oriented wing.)

For historians, the interesting question then is not really about precisely why a specific nomination and confirmation process took the form that it did, but is rather about why and how the larger political processes changed as they did.Understand that and you’ll understand the larger dynamics of the Kagan nomination.

As the opening day of hearings on Elena Kagan’s nomination to the Supreme Court approaches, some historical reflections on the processes of nomination and confirmation seem appropriate. As any historian will tell you about essentially everything, it wasn’t always this way, and yet there is nothing new under the sun.

1. I’ve been struck by two novel features of the process – the presidential interview and the courtesy calls on Senators. I don’t know precisely when these practices started, although I suspect that exploring the question might make for a nice short paper. Here are some speculations about these practices. My speculations are clearly large-scale generalizations, and there will inevitably be exceptions, but my guess is that they are largely accurate.

Interviews and courtesy calls didn’t happen earlier because presidents and senators knew the nominees – not just knew of them by reputation, but actually knew them personally because the nominees were part of a national political class the members of which interacted with each other with some regularity. (Some exceptions might fit into a subcategory, in which nominees were thought to be representatives of particular regions; in these instances the hypothesis would be that senators from the relevant region knew the nominees.) Nominees today are not known to presidents and senators because the national political class has expanded enormously.

Another reason for the interviews and courtesy calls might be something like the “professionalization” of the Supreme Court, evidenced by the widely observed facts that every sitting justice today (and all but one if Kagan is confirmed) will have served as a federal appellate judge, and that every one has a law degree from an elite law school. Exactly why professionalization has occurred – if it has – remains obscure, but may have something to do with the precise form that the politics of nomination and confirmation take today. More on that in the next post.

Chief Justice Roger Brooke Taney is best remembered for his 1857 opinion in Dred Scott v. Sandford, in which he refused a Missouri slave's claim to freedom and denied the rights of citizenship to both slaves and free blacks. "They had for more than a century before been regarded as beings of an inferior order," the chief justice infamously intoned, "and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect." Amid the national debate over the extension of slavery, Taney took the extreme proslavery position in his opinion, guaranteeing the property rights of slave owners by holding that Congress had no power to prohibit the institution in new territories. Less well known, however, are Taney's words in defense of an abolitionist minister nearly forty years earlier in Frederick County, Maryland. While establishing his career as a lawyer and serving as a Federalist political leader, Taney had defended Rev. Jacob Gruber, who had been indicted for preaching a sermon that allegedly disturbed the peace and promoted rebellion. During that 1819 trial, Taney made impassioned statements against the peculiar institution that stand in stark contrast to those penned by the "angry southern gentleman" in the Dred Scott decision. In a speech to the jury, Taney described slavery as "a blot on our national character" and insisted that "every real lover of freedom confidently hopes that it will be effectually, though it must be gradually, wiped away." Historians have occasionally noted the incongruence between Taney's statements in 1819 and his opinion in Dred Scott, but no scholar has investigated the relationship between Taney's early antislavery words and his later proslavery position. This essay attempts to make sense of Taney's pronouncements on slavery.

Over on H-Law, Peter Hoffer, University of Georgia, reviews Steven Robert Wilf's Law's Imagined Republic: Popular Politics and Criminal Justice in Revolutionary America(Cambridge: Cambridge University Press, 2010). “Can a history of the founders be brilliantly original and exasperatingly elusive at the same time; replete with insight and still riven with jargon?” Hoffer asks. “The answer plainly is yes, and exhibit A is Steven Wilf’s remarkable essay on the role of criminal trials in the framing of American legalism.” Hoffer writes, “I am not sure that I buy all of Wilf’s thesis, but no one will ever write about revolutionary legalism without having to deal with it.”More.

The guarantee of equal protection of the laws extends to women as well as men. Yet for the first 100 years of the Fourteenth Amendment's life, the Supreme Court never found a law unconstitutional on the grounds that it discriminated on the basis of sex. Between 1970 and 1980, social movement advocacy and brilliant litigation by Ruth Bader Ginsburg and others changed our constitutional law. Over the course of the decade, the Court extended the anti-stereotyping principle from discrimination on the basis of race to discrimination on the basis of sex. But fidelity to the principle had its limits. In short, the Court's 1970s cases hold that the antistereotyping principle constrains laws that classify by sex, but do not find the principle violated where government regulates pregnancy. Our Essay unsettles this familiar story by making three points.

First, we show that in the 1970s, Ruth Bader Ginsburg and the women's movement argued that the antistereotyping principle applied to pregnancy; the movement viewed the regulation of pregnant women as a paradigmatic site of sex-role stereotyping. Second, we show that even though the Court initially had difficulty seeing that sex role stereotypes were sometimes implicated in cases concerning the regulation of pregnancy, the Court's constitutional decisions have increasingly come to recognize the relationship between pregnancy discrimination and sex discrimination. Third, we suggest that the Court and other constitutional interpreters should revisit Geduldig and read the decision's holding more precisely - and narrowly - as recognizing that, while there are legitimate reasons for regulating pregnancy, such regulation can be animated by invidious or traditionally stereotypical judgments. This understanding has implications for both equal protection and reproductive rights cases.

I do not usually associate Senator Charles Grassley, from my native state of Iowa, with Supreme Court Justice Felix Frankfurter, but it happens that they have something in common: a mistrust of the revolving door at the Securities and Exchange Commission. Last month Senator Grassley filed an amendment to the financial regulation bill that would require former employees to wait two years before representing clients before their old agency. This week he exchanged letters with the SEC’s Inspector General about a recent door revolver. Seventy-five years ago, Justice Frankfurter expressed similar concerns.

Frankfurter was present not just at but before the creation of the SEC. In 1933, when Sam Rayburn became convinced that the Roosevelt administration’s initial proposal for regulating securities markets was unworkable, he turned to Raymond Moley, one of FDR’s Brain Trusters, for help in drafting an alternative. Moley turned to Frankfurter, at the time a Harvard law professor, and Frankfurter assembled three of his students and proteges--Thomas G. Corcoran, Benjamin V. Cohen, and James Landis--to write what became the Securities Act of 1933. The following year Corcoran, Cohen, and Landis drafted legislation creating the SEC. Landis became one of its first commissioners, and in 1935 he succeeded Joseph P. Kennedy as chairman.

In December 1935, Frankfurter received a form letter from the SEC asking for information about a lawyer who sought to practice before the commission. The professor was moved to ask Landis whether the SEC had any rule comparable to that of the U.S. Supreme Court, which prohibited “practice before it by those who had recently been in its confidential employment.”

For you, [Frankfurter continued,] I don’t have to spell out the considerations that are involved. But it does seem to me the Supreme Court principle (which has now been adopted by the Communications Commission . . . ) is more applicable to former officials practicing before your Commission than to any other body that I know anything about. Not only the ways of doing business, and all that, but actual knowledge of confidential facts ought not to be available by those who had been officially entrusted with them, until a reasonable time has elapsed to immunize their use, as far as may be, for private purposes. Of course, I know there is no way of avoiding use of such inside knowledge as to facts and psychology and procedure by private interests through the employment of former officials of the Commission. But the evil should be minimized as much as possible. It can partly be done by your rules. For all I know, you probably have done so.

Frankfurter was correct about the Federal Communications Commission. At the confirmation its commissioners in early 1935, Senator Burton Wheeler denounced the revolving door as a cause of the scandals that plagued its predecessor agency. “Almost every time anybody ceased to occupy a position on or with the Federal Radio Commission he immediately turned up as the representative of the broadcasting companies,” the Montana Democrat complained. “It is an extremely bad practice, to say the least, for a man to step out of the Federal Radio Commission and then go before it and appear for private clients.” Chastened, the commissioners promptly adopted a regulation that prohibited any officer or employee from appearing “in any matter or controversy” for two years after leaving the FCC.

The SEC did have a rule limiting appearances by its former lawyers, but it was merely transactional, not the FCC’s complete ban. That is, a former member of the SEC’s staff could not appear in any matter pending while he worked at the SEC if he had acquired through his job “such familiarity as to be prejudicial to the proper conduct of the case”; otherwise, the lawyer was free to take clients as soon as he left the commission.

A harried Landis replied that he had no response other than “a very practical one, and that is our need for employees. We are in a different position than Communications,” he protested, “and when I look over some of their lawyers I shudder.”

Seeing that Landis had no time to “argue the question,” Frankfurter replied that he "ought also to be still.” But being still was something, it seems, Frankfurter could never do. First, he denied that the FCC’s two-year ban accounted for the quality of its legal staff. Its “bad lawyers certainly preceded their rule,” he reminded the SEC chairman. (The FCC would rescind its ban in 1938.) Second, he demanded of Landis, “Do you really believe you could not get the kind of lawyers you ought to have if they were debarred from practising two years after they left your Commission”? He posed the example of Robert Page, whom he had chosen to clerk for Justice Brandeis and who was then serving as the SEC’s regional administrator for New York City:

Much as I love Bob Page, I would deem it highly indecent were he to capitalize on the opportunities the Government gave him by using his charming personal relations and his inside knowledge . . . promptly after going into practice. If that is the cost of having men like him work for the Commission, the gain isn’t worth the cost. It has only confirmed my conviction that the deepest source of infection of our ethical standards is our own profession.

By placing Landis and other proteges in the New Deal, Frankfurter believed he was “building up . . . the equivalent of the British Civil Service,” an enterprise “second in importance to nothing affecting the public life of our nation.” He was convinced that government lawyering could become as prestigious as any branch of the American legal profession and that the SEC could always find first-rate lawyers who refused to “go into the service of interests that will capitalize for private ends the experience and influence gained from public service.” Landis, about to justify his lawyers’ salaries to congressional appropriators for the first time, had his doubts.

Surely Landis was right in thinking that government lawyers were no more selfless as a class than anyone else, but, as Frankfurter might add, that does not mean they are more selfish either. Like other professionals, their self regard turns in part on the esteem of their peers, but, unlike private practitioners, it also suffers from the slights that Americans too often direct toward government as a whole. The vilification of the public sector is at least as great a threat as the lure of the private sector to the quality of government lawyering.

From the Industrial Workers of the World and the International Longshore and Warehouse Union to the Black Panthers and the Third World Liberation Front strikes, radical movements embracing and demanding racial justice have figured prominently in the history of the “left coast” of the United States. They have also generated violent responses, including state repression, that reverberated across the United States and around the world.

The Center for the Study of the Pacific Northwest and the Harry Bridges Center for Labor Studies at the University of Washington invite panel and paper proposals on any aspect of race, radicalism, and repression within or somehow related to the Pacific Coast of North America, including linkages to peoples, ideas, and movements across the oceans and continents. We are especially interested in proposals that seek to reorient the study of race and politics in U.S. and world history.

In addition to the conference, the University of Washington Press will publish a collection of essays selected and revised from the conference presentations. George Lipsitz of the University of California, Santa Barbara, will deliver the keynote address.

All proposals must include a title and an abstract of each presentation (no more than 300 words) and a brief CV of each presenter (no more than two pages). Panel proposals must also include a title and a description of the session (no more than 250 words). Please submit all materials as email attachments (Microsoft Word or pdf) to cspn@uw.edu by September 30, 2010.

Here is a news report of a conference in Wellington to highlight the finds of a recent New-Zealand-wide search for legal historical records in private hands. In 2007, Shaunnagh Dorsett, Professor Richard Boast and Geoff McLay of Victoria University's Faculty of Law and Mark Hickford and Damen Ward from the Crown Law Office received a substantial grant from the New Zealand Law Foundation "to search attics, notebooks and family records for early legal history." Professor Dorsett explains that "some of the records lay in archives and with law societies, but some was in private collections - for example, judge's notebooks, an important source of information - are often handed down to family members." The search also turned up 2500 decisions of the New Zealand Supreme Court from 1841 to the mid-1860s.

This review of Timothy's Egan's 2009 book, "The Big Burn: Teddy Roosevelt & the Fire That Saved America," lauds Egan's storytelling while questioning the title of his book. Egan tells a gripping tale about the largest wildfire in North America, a 1910 blaze in the Bitterroot Mountains along the largely unroaded Idaho-Montana border that cost a hundred people their lives and burned an area fifty percent larger than Yellowstone National Park. Egan claims that the big wildfire secured the young U.S. Forest Service's role as a public land manager and established conservation as a politically viable policy that encouraged Theodore Roosevelt to attempt to recapture the presidency in 1912. However, at the center of Egan's story is not Roosevelt, but Gifford Pinchot, whom Roosevelt appointed the first chief of the Forest Service in 1905. Pinchot convinced Roosevelt to preserve more public land (outside of Alaska) than any president before or since, and he made the Forest Service into one of the most respected government agencies in twentieth century America. But the Big Burn's legacy also led Pinchot's successors to give priority to fighting public land wildlifes, which damaged the ecology and, ironically, led to larger wildfires. The review suggests that the Pinchot-Roosevelt conservation era produced more public support for environmental protection than ever in American history, and that the political lessons of that era may be useful in a twenty-first century challenged by catastrophic oil spills and global climate change.